Diagnosis for Democracy
Insights into the State of Our Union
A Blog by Rob Tenery, MD


July 10, 2012: Chief Justice Roberts' Decision Might Just Be a Stroke of Genius

By Rob Tenery, MD on July 10, 2012

The Supreme Court’s decision to uphold the constitutionality of the Patient Protection and Affordable Care Act (PPACA) sent shock waves around the country. The President and the Democrats claimed victory, while the wounded Republicans vowed to repeal Obamacare after the next election cycle. What was even more surprising than the decision itself was that Chief Justice Roberts, a known conservative, member of the Reagan administration and George W. Bush appointee, broke ranks and voted with the four liberal judges in favor of upholding the PPACA. One national pundit went so far as to imply Robert’s decision was flawed due to medication he reportedly takes. Others, who lean to the right, have condemned his decision as a betrayal to the principles for which he was selected to the country’s highest court. There was even accusations that he had disgraced the tripartite system of checks and balances set down in the Constitution by bending to the current administration and the liberal media.

None of these accusers may ever know what went on in Roberts’ head when he switched his position apparently a month before the high court reached its final 5 to 4 decision. He reportedly takes his role as conciliator between the liberal and the conservative judges on the bench very seriously. In the past, Justice Roberts made it clear during his 2005 Senate confirmation hearings that he is a strong proponent of judicial restraint--- judicial interpretation that encourages judges to limit their own power by not overturning laws unless they are obviously unconstitutional. Along this line, Roberts referred back to a citing by Justice Oliver Wendell Holmes in the 1928 case of Blodgett v. Holden, which he stated, “between two possibilities of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” According to reports, he did not want the high court to be involved with the PPACA, but was forced to address it when many of the states’ attorney generals brought suit against the law.

In his report for the majority opinion of the court, Chief Justice Roberts writes the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. He continues by explaining that it is valid as an exercise of the taxing power granted the federal government by the Constitution.

In dissent, Justice Antonin Scalia wrote: For all these reasons, to say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling… That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.

Although many conservative pundits call his decision misguided, none have labeled the Chief Justice as stupid. Of the various theories put forward, the most plausible is that Roberts was searching for a way to not overturn a law that had been the center of most contentious debate since the inception of the Obama presidency. Not necessarily because he was in favor of the legislation, but because he felt the final decision should rest in the hands of the electorate and not the nine appointed judges on the high court. Since final enactment of the law does not go into effect until 2014, the results of the November elections of 2012 would determine its fate.

Chief Justice Roberts agreed with the conservative justices on the bench that never before had the Congress used their authority to order Americans to buy a product from a private company as an extension of the Commerce Clause of the Constitution (Article 1, Section 8, Clause 3). Arguably, following his desire to not ‘legislate from the bench’ and overturning a law that had been passed by both houses of Congress and signed into law by the President, he branded the new legislation a tax and the four liberal judges on the bench went along with his decision.

This landmark decision potentially changes the balance of power in Washington. According to the Constitution, Congress can levy taxes, and already has the authority to legislate how goods are manufactured and often how they may be used. But with this Supreme Court ruling, it would appear they cannot use the Commerce Clause of the Constitution (Article 1, Section 8, Clause 3) to mandate that citizens purchase products and services.

There are those who feel this decision, regarding the PPACA, grants far too much additional taxing power to the Congress.  If the PPACA had been ruled constitutional as a mandate, in the future, Congress would also be able to force citizens to purchase goods as well. After the Supreme Court’s ruling, it appears the Congress may be emasculated from legislating under this authority.

Additionally, with the ruling of the PPACA as a tax, the components elucidated within the legislation can be changed with a simple majority in halls of Congress versus a super majority. As Justice Roberts may have realized, a plurality at the next election cycle could give Congress power to reverse the existing dictums or levy new ones. The Supreme Court decision also allows the states to accept or reject the stipulated increased funding for their Medicaid programs without any adverse ramifications to their existing programs. This aspect of the Court’s opinion is monumental in affording the independence of states’ rights over proposed federal programs.

The Supreme Court’s decision has turned the fate of the PPACA over to the electorate through the ballot box in November and not to any one of the three branches of the government--- restoring a true balance of power that seems to be slipping away.

The Supreme Court’s decision has also defined the current campaign. Sensing this, the Democratic party has altered its current message to ‘a penalty for those free riders’ who rely on others to pay for their health care. During a discussion on CNN’s program “Starting Point with Soledad O’Brien,” President Obama’s deputy campaign manager, Stephanie Cutter, stated, “It’s (PPACA) a penalty. If you choose not to get healthcare, you’re imposing a hidden tax on all of us because we pay for your healthcare, then you’ll pay a penalty.” Presidential candidate, Mitt Romney, added, “States have the power to put in place mandates. They don’t need them to be called taxes in order for them to be constitutional….And as a result, Massachusetts’s mandate (Romneycare) was a mandate, was a penalty, was described that way by the Legislature and by me, and so it stays that way.”

The Republican message touts that the new law calls for the largest tax increase in history. Senate Minority Leader, Senator Mitch McConnell, R-Ky, said the PPACA “is a tax and 77% of it is going to be funded by Americans making less than $120,000/year.”

The results of the November election will determine which party Roberts' decision benefits. In either case, it will be the people’s choice.

Isn’t that the way it is supposed to be?

Is the Chief Justice a hero, or a traitor, to his conservative following? Was his decision to switch positions based on intended or unintended consequences? Can the Republican Party reverse Obamacare even if they win the Presidency and both Houses of Congress?

Roberts’ deciding vote was a gamble of monumental proportions.

His decision could well affect the role of the Congress in their debates on all future legislation. Agree or disagree with his decision, it seems obvious that Chief Justice Roberts is sending a clear message to both political parties, the President, the media and the electorate to do their job.

Roberts’ court doesn’t plan to do it for us.




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